Prasant Naik; And vs State Of Odisha
2023 Latest Caselaw 14402 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.743 of 2018

    In the matter of an Appeal under Section 374 (2) of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 27th August, 2018 & 29th August, 2018
    respectively passed by the learned Additional Sessions Judge,
    Dhenkanal, in C.T. (SS) Case No.169 of 2014 (C.No.9 of 2015).
                                     ----

        Prasant Naik; and                      ....        Appellants
        Pranabandhu Naik

                                 -versus-

        State of Odisha                        ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellants   -      Mr.Prasanta Ku. Sahoo,
                                        U.C.Dora, G.R.Das and
                                        P.P.Sahoo, (Advocates)

                For Respondent -        Mr.S.K. Nayak,
                                        Additional Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE G.SATAPATHY
    Date of Hearing : 03.11.2023 :          Date of Judgment :13.11.2023

D.Dash,J. The Appellants, by filing this Appeal, have called in

question the judgment of conviction and order of sentence dated

27th August, 2018 & 29th August, 2018 respectively passed by the

learned Additional Sessions Judge, Dhenkanal, in C.T. (SS) Case

CRLA No.743 of 2018 {{ 2 }}

No.169 of 2014 (C.No.9 of 2015) arising out of G.R. Case No.138 of

2014 corresponding to Rasol P.S. Case No.46 (10) of 2014 in the

Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.),

Hindol.

The Appellants (accused persons) thereunder have been

convicted for committing the offence under section 302 of the

Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, each

of them has been sentenced to undergo imprisonment for life and

pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to

undergo rigorous imprisonment for six (6) months for

commission of the said offence.

2. PROSECUTION CASE:-

On 29.4.2014 around 9.50 a.m., one Kantheswar Nayak

(P.W.4) of Village-Kapi Sahi submitted a written report with the

Officer-in-Charge of Rasol Police Station (P.S.) stating therein that

his mother, namely, Chhaya Naik, on that day, had been to the

cashew field known as Dharua-taila to pluck cashews and his

elder father's son (Bhagirathi Naik-P.W.5) as well as one Narana

Naik, who is called as uncle in the village courtesy had been to

their respective fields adjacent to the said cashew field where his

mother had been. It was around 8.00 a.m., Bhagirath (P.W.5)

rushed near his mother hearing her shout "MAA LO MARI GALI

MARI GALI" and noticed her lying on the ground with cut injury

CRLA No.743 of 2018 {{ 3 }}

on her neck. Kantheswar (P.W.4), with his family members and

some other villagers hearing the loud call of Bhagirathi (P.W.5)

went to the spot and noticed Chhaya lying on the ground in that

cashew field with deep cut injury on her neck. It was suspected in

the said report that the mother of Kantheswar (P.W.4), namely,

Chhaya, had been murdered by some person/s by causing injury

on her neck by sharp cutting weapon. The written report was

lodged by Kanthaswar (P.W.4), who happens to be the son of the

deceased.

The above written report, being received by the O.I.C.

(P.W.17), the same was treated as FIR (Ext.4) and upon

registration of the case, took up the investigaiaton.

3. The Investigating Officer (I.O.-P.W.17), in course of the

investigation, examined the informant (P.W.4). The I.O. (P.W.17),

having visited the spot, prepared the spot map (Ext.9). He

(P.W.17) held inquest over the dead body of the deceased in

presence of the witnesses and prepared the report (Ext.1). He sent

the dead body of Dillip for post mortem examination by issuing

necessary requisition. The I.O. (P.W.17) seized the sample earth,

blood stained earth, broken bangles from the spot under seizure

list (Ext.2). The wearing apparels of the accused persons were

seized under seizure list (Ext.5). The seized incriminating articles

were sent for chemical examination through Court. On

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completion of investigation, the I.O. (P.W.17) submitted the Final

Form placing this accused to face the Trial for commission of the

offence under section 302/34 of the IPC.

4. Learned S.D.J.M., Hindol, on receipt of the Final Form, took

cognizance of the said offence and after observing the formalities

committed the case to the Court of Sessions for Trial. That is how

the Trial commenced by framing the charge for the aforesaid

offences against this accused person.

5. The prosecution, in support of its case, has examined in

total seventeen (17) witnesses during Trial. Out of them, as

already stated P.W.4 is the informant, who happens to be son of

the deceased. P.W.9 is the husband of the deceased. P.W.10 is

another son of the deceased and P.W.11 is the sister of the

deceased and a witness to the inquest. P.Ws.5 & 6 both are two

niece of the deceased and post occurrence witnesses. P.W.16 is a

witness to the weapon of offence. P.W.15 is the Doctor, who had

conducted the post mortem examination over the dead body of

the deceased. The I.O., at the end, has come to the witness box as

P.W.17.

6. Besides leading the evidence by examining the above

witnesses, the prosecution has also proved several documents

which have been admitted in evidence and marked Exts.1 to 16.

CRLA No.743 of 2018 {{ 5 }}

Out of those, the important are, the FIR (Ext.4), the inquest report

(Ext.1), the post mortem report (Ext.7), and the spot map (Ext.10).

The chemical examination report had been admitted in evidence

and marked Ext.16.

7. The accused persons, having taken the plea of complete

denial and false implication, examined one Sumanta Naik as

D.W.1 in support of the defence.

8. Mr.P.K.Sahoo, learned counsel for the Appellants (accused

persons) submitted that the prosecution case is based on the

solitary testimony of P.W.8, which is stated to be receiving

corroboration from other evidence. He submitted that the

evidence of P.W.8 has not been appreciated by the Trial in a just

and proper manner. It was submitted that this P.W.8, for the first

time, has disclosed about the complicity of the accused persons

before the police about one and half month after the incident

when the fact remains that he being earlier been examined by the

police and had not stated anything about the involvement of

these accused persons and that he had seen these accused persons

inflicting the injuries upon the deceased. He further submitted

that basing on said evidence of P.W.8, which suffers from the

delayed disclosure, which is a conduct, which could not have

been condoned as the explanation to that effect is seen to be

completely false, the Trial Court has erred in recording the

CRLA No.743 of 2018 {{ 6 }}

conviction. He submitted that the same state of affair as to the

delayed disclosure regarding to the complicity of these accused

persons to have assaulted the deceased stands. He further

submitted that this P.W.12 although was examined immediately

after the incident, had stated nothing against these accused

persons, yet during his second examination after one and half of

the incident, has come forward to say that he had heard the

deceased shouting and then he with Kalandi and others to have

rush down near her and seen the accused persons killing him. He

submitted that the further improvement made by this P.W.12,

which was not in his first statement before the I.O. (P.W.17) and

the explanation for said delayed disclosure appears as false and,

therefore, the evidence of P.W.12 ought to have been eschewed

from consideration as highly unsafe to be relied upon. He,

therefore, submitted that the judgment of conviction and order of

sentenced, impugned in this Appeal, are liable to be set aside.

9. Mr.S.K.Nayak, leaned Additional Government Advocate

for the Respondent-State submitted that the prosecution, having

proved the fact that Chhaya met a homicidal death; in view of the

assertive evidence of P.Ws.8 & 12 to have seen the accused

persons inflicting blows upon the deceased immediately rushing

to the spot hearing the call of Chhaya (deceased), the delayed

disclosure of that fact when has been explained by them to be on

CRLA No.743 of 2018 {{ 7 }}

account of threat being given by the accused persons, the Trial

Court has rightly repelled the contention of the defence to hold

the evidence of P.Ws.8 & 12 as unreliable.

10. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

from the side of the prosecution (P.Ws.1 to 17) and have perused

the documents admitted in evidence marked as Exts.1 to 16.

11. The Doctor, conducting the post mortem examination of

Chhaya (deceased) has been examined as P.W.15. He has stated to

have noticed one lacerated wound over right side back of neck

underline of C-7 of the size of 4 cm X 4 cm X 3 cm with underline

great vessel injury and dissection of spinal cord. P.W.15, on

dissection, has found the vertibra column to have been fractured

and complete dissection of spinal cord. Except this injury, no other

injury has been noticed by the Doctor (P.W.15). It is his evidence

that due to the effect of said injury, which was ante mortem in

nature, the death had taken place and it was a case of homicidal

death. This finding has been reflected by the Doctor (P.W.15) in his

report (Ext.7). It is also his evidence that the axe seized in

connection with the case can cause said injury. We find absolutely

no difficulty in accepting the prosecution case that Chhaya met a

CRLA No.743 of 2018 {{ 8 }}

homicidal death on account of the injury noted by P.W.15 caused

by a sharp cutting weapon.

The point now stands as to who can be attributed to be the

author/s of said injury. The prosecution, for the purpose, heavily

relies upon the evidence of P.Ws.8 & 12. P.W.8, during his first

examination by the I.O. (P.W.17) had remained silent with regard

to the involvement of anybody in causing such injury upon the

deceased and after one and half month of the incident, he

disclosed against before the same I.O. (P.W.17) implicating the

accused persons to be perpetrators of the crime. He has stated that

hearing the shout of the deceased "MARI GALI MARI GALI",

when he was plucking cashews, he rushed to the spot and noticed

the deceased lying with cut bleeding injury on her back while

Bhaigirathi (P.W.12) was sprinkling water on her face. So, he is not

stating in directing implicating these accused person to have

inflicted the blow as to have been seen by him or to have been told

by P.W.12, who by the time this witness arrived, was very much

present. He has stated that he intimated about the occurrence to

the villager and thereafter, the informant (P.W.4) and other

villager went to the spot. He does not state that he had told

anything about the complicity of these accused persons to them.

Paragraphs-3 & 4 of his evidence is important, which run as

under:-

CRLA No.743 of 2018 {{ 9 }}

"3. I was examined by the police twice in this. First I was examined on the date of occurrence and then one and half thereafter. At the first instance, I had not disclose before the police about the name of the assailants who had killed the deceased as the accused Prabanabandhu and his two sons and threaten us to kill in the event of disclosure of their names before police. The accused Pranabandhu and his two sons have killed the decease; and

4. The accused Pranabandhu was holding an axe and his two sons were holding Kati/Katari (sharp cutting instruments). The accused Pranabandhu was holding a Tangia and his two sons were holding Katis and were found standing near the deceased after the occurrence. Thea accused Pranabandhu wore a yellow shirt and a check lungi. The accused Prasant wore a check lungi and an earthen colour ganji and the accused Pradeep wore a check lungi and white colour ganji. I noticed all the accused persons from a distance of about 50 to 100 meters after the occurrence. I had not dared to go near the accused persons as they were armed with weapons. The accused persons went away from the spot after the occurrence. All the above facts I have stated before the police when I was examined for the second time."

We do not find that after having stated in the first paragraph

as to how P.W.8 went to the spot what he saw, his narration in

Paragraph-4, as above, can again be taken to be the truthful

account of the incident. Furthermore, this disclosure appears to

have been made before the I.O. (P.W.17) one and half month after

the incident. The explanation given is that the accused persons had

threatened him to be killed in the event of disclosure of their

names before the police. If that was so, even if during his second

CRLA No.743 of 2018 {{ 10 }}

examination by the I.O. (P.W.17), he has not stated that for that

very reason of threat, he had not disclosed about the complicity of

these accused persons during his first statement before the I.O.

(P.W.17). It is his evidence that he was in the villager till

examination of the I.O. for the second time. Although he has stated

to have informed P.W.17 during investigation about the threat and

intimidation of the accused persons, the I.O. (P.W.17) is, however,

not stating anything about that nor P.W.8 is not stating to have

lodged any report to the police to that effect. The evidence of this

witness is again interesting when it is seen that he states that the

accused persons had threatened him during the afternoon about

the death of the deceased. If that was so, he having not disclosed

the complicity of these accused persons killing Chhaya before

other villagers much before the threat stands as a grave suspicious

circumstance to brand him as not a truthful witness.

The other witness is P.W.12, who is the brother (uncle' son)

of the informant (P.W.4) and the deceased was his aunt. He is a

witness to the seizure and having first stated in paragraphs-1 & 2

of his deposition about such seizure etc., in paragraphs-3 & 4, he

has stated as under:-

"3. On the date of occurrence in the morning hour, I had to been to my cashew filed at Champadei hills to pluck cashew nuts. Thee were cashew fields of the deceased and Kalandi naik near to my field. I had seen the deceased and Kalandi were plucking cashew nuts in their field. I

CRLA No.743 of 2018 {{ 11 }}

heard shout "Dhaina asa, Dhaina asa, Dhain asa marigali....." of the deceased. I and Kalandi proceeded to the spot and noticed some one hacked neck of the deceased by means of a sharp cutting weapon. I called other's by shouting. My uncle Bilasa, Kantheswar and others arrived and shifted my aunt in a cradle (Dola) to her house but then she died. I have told about the seizures before police; and

4. One and half months after the occurrence, I was again examined by the police. I heard my aunt shouted by saying, Bhaiga (me), Kalandi and others Dhain asa Dhain asa, the accused Panua and his sons are killing me. I have stated the fact before the police. I immediately rushed to the spot and noticed Panua while was dealing blows by means of a Tangai on back portion neck of the deceased when his two sons, namely, Prasanta and Pradeep were holding two hands of mny aunt. Prasanta and Pradeep were also holding Katies (sharp cutting weapons). By the above time, Kalnadi reached at the spot. My aunt fell down at the spot due to the tangia blows of the accused, Panua. After the occurrence the accused Panua and his two sons fled away. The accused Panua was wearing a yellow colour shirt and check lungi, the accused Prasanta was wearing a grey colour Ganji and Lungi and Pradeep was wearing a white colour ganji and lungi. Out of fear, I did not protest the accused person's while were killing the deceased. I had spnkled water on the face of the deceased after arriving at the spt."

When we carefully read paragraph-3 of the deposition of

P.W.12, as above and then that of the deposition of P.W.4, his

version is not acceptable. Be that as it may, this witness has

disclosed everything about the complicity of these accused persons

for the first time after one and half month of the incident. The

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Investigating Officer (P.W.17) is silent as to what was the occasion

for him to examine P.Ws.8 & 12 for the second time after one and

half months of the incident and the reason for him to adopt such

procedure is not forthcoming. He does not state also that when

this P.W.12 stated before him for the second time, he had given

any explanation for his non-disclosure about the complicity of

these accused persons during the first examination in saying that it

was because of the threat from the side of the accused persons.

When P.W.8 states that this P.W.12 was found to be sprinkling

water on the face of the deceased, who was then lying when he

arrived, the version of P.W.8 to have seen the incident wherein the

accused persons were assaulting the deceased is absolutely non

believable and this P.W.12 also does not state that when he was

sprinkling water on the face of the deceased, P.W.8 arrived. It is

the evidence of P.Ws.12 that when he and Kalandi (P.W.8) were

examined on the very day of the incident when police visited their

village and on that day also, the informant (P.W.4) and one Billash

(P.W.9) had assembled. As already stated, the FIR (Ext.4) is silent

as regards the complicity of any one in the said incident. Even if

we believe for a moment that these two witnesses had seen the

incident to some extent, the medical evidence with regard to the

number of injury, i.e., one (1) noticed on the deceased tend to belie

the version of P.Ws.8 & 12.

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With the evidence, as afore-discussed, we find that the

prosecution has utterly failed to prove the charge against the

accused persons beyond reasonable doubt by leading clear,

cogent and acceptable evidence and the Trial Court's finding as to

the guilt of the accused persons committing murder of Chhaya is

thus vulnerable.

12. In the result, the Appeal is allowed. The judgment of

conviction and order of sentence dated 27th August, 2018 & 29th

August, 2018 respectively passed by the learned Additional

Sessions Judge, Dhenkanal, in C.T. (SS) Case No.169 of 2014

(C.No.9 of 2015) are hereby set aside.

Since the Appellant No.1, namely, Prasant Naik is on bail,

his bail bonds shall stand discharged and the Appellant No.2-

Pranabandhu Naik, being in custody, he be set at liberty

forthwith, if his detention is not required in connection with any

other case.

(D. Dash), Judge.

G.Satapathy, J. I Agree.

(G.Satapathy), Judge.

Signature BasuNot Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 14-Nov-2023 14:12:35

CRLA No.743 of 2018